Judge issues warning in synthetic drug trial

The judge in a federal drug trial involving Duluth’s Last Place on Earth opened Monday’s pretrial conference with a stern warning for both sides.

Tom Olsen, Forum News Service

The judge in a federal drug trial involving Duluth’s Last Place on Earth opened Monday’s pretrial conference with a stern warning for both sides.

U.S. District Court Judge David S. Doty told the prosecution and defense that he doesn’t appreciate the two sides squabbling over minor issues as they prepare to head to court.

“This is an overcomplicated case, and it’s become more overcomplicated over the past few days,” Doty said as he began the conference. “It doesn’t sit well with me, and it shouldn’t sit well with you.”

Both sides have filed numerous motions ahead of the start date, and Doty said he’s been bogged down in case paperwork for the past week. He tried to change that Monday as he brokered several deals and sought common ground in the contentious case.

Last Place on Earth owner Jim Carlson is charged with 55 federal offenses in connection with the sale of synthetic drugs at the downtown Duluth business. His girlfriend, Lava Haugen, and son, Joseph Gellerman, also are named on some of the charges. The three are being tried together, which is standard in federal cases.

In addition to charges related to selling and distributing controlled substances, the U.S. Attorney’s Office is trying the case on federal labeling laws.

With a jury set to be called today, Monday was the day for the two sides to settle lingering issues between the two prosecuting attorneys, five defense attorneys and three defendants.

Throughout the day, Doty expressed frustration with the 55-count indictment, which he called “exceedingly long,” but the prosecution did not show any signs of wavering.

“I keep hoping that the government will see the light and say, ‘Oh my, there are too many charges here,’ ” Doty said. “I’m hoping that they’ll pick four or five charges and say the rest aren’t needed.”

Attorney John Markham, representing Haugen, said the defense could work with the prosecution if the charges were cut down.

“That would be a very good step toward an agreement,” he said in response to Doty’s suggestion.

“But I don’t see that happening,” Doty replied.

The two sides also took up issues of evidence and arguments during the hearing. Prosecutors Surya Saxena and Nate Petterson successfully asked that the defense not be able to claim entrapment — a defense based on a theory that government agents unfairly targeted and set up the defendants for charges.

Defense attorneys appear to be preparing to argue that Carlson, Gellerman and Haugen tried to stay within the law at all times and never knowingly sold illegal products. Attorneys want to introduce numerous statements made by politicians and officials at agencies such as the Drug Enforcement Administration to show the defendants believed the products they sold were legal.

Prosecutors are arguing that the store sold products that were controlled substances, or very similar, and say that ignorance of the law is not a legal defense. Under federal law, drug analogues — substances with a very similar chemical make-up to those that are controlled — also are illegal, the prosecution argued.

But with an ever-changing list of controlled substances, timing will be crucial in the case, Doty said. The judge later left open the possibility of allowing the defense to claim that Carlson, Gellerman and Haugen were unaware that some products were illegal.

“You’re saying that they can’t say they didn’t know what they were doing is wrong,” Doty told the prosecution. “Well, that’s what the defense is in most every criminal case. They need to be able to say they didn’t do anything wrong.”

Carlson had sold products he called “incense” under various names, including “Spice” and “K2” at his store for about four years before it was shut down July 19 by order of a state judge.

Jury selection in the case will begin today, and Doty acknowledged it may be hard to find jurors who are unaware of the head shop, even in Minneapolis.

Once a jury is seated, attorneys will make opening statements. The prosecution’s first witnesses might be called before the day is over.

The sides agreed to tell the jury the case should last about three weeks. Saxena said it would take him about two weeks to call about 30 witnesses. The defense expects to need about two or three days.

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